Miner v. Lovilia Ind. Sch. Dist.

Not being able to agree with the majority opinion in this case, I respectfully dissent.

The basis of the majority opinion is that the contract between the school board and appellee contained an optional provision authorizing its cancellation at any time during the school year, providing a twenty-day notice be given. Therefore, the majority conclude that the appellee is not entitled to the damages demanded because, in accordance with that optional provision, appellant cancelled the contract by giving the required notice. Provision (c) of the teacher's contract contains the following: "And it is further agreed: * * * That either party to this contract, on twenty days' written notice to the other, may terminate this contract."

Were such optional agreement an authorized and valid part of the contract, then appellee could not recover. Is the provision a legal limitation upon appellee's rights within the statutory agreement? Section 4229 of the 1927 Code provides:

"Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, the compensation per week of five days, or month of four weeks, and that the same shall be invalid if the teacher is under contract with another board of directors in the state of Iowa to teach covering the same period of time, until such contract shall have been released, and such other matters as may be agreed upon, which may include employment for a term not exceeding the ensuing school year, except as otherwise authorized, and payment by the calendar or school month, signed by the president and teacher, and shall be filed with the secretary before the teacher enters upon performance of the contract."

Because of the clause "and such other matters as may be agreed upon", appellant contends that the statute authorized the board and the teacher to adopt the optional provision for the forfeiture above named. Basis for this contention, the majority say may be found in Black v. Consolidated Independent School District, 206 Iowa 1386. In the Black case there was involved not a teacher's contract, but an agreement with a driver for transportation. Contained in the contract was the following provision:

"`The board of directors reserves the right to terminate this contract at any time.'"

This court concluded that the provision was valid, and that by signing the agreement embodying it, the driver waived his right to serve for a definite term. Clearly, however, the statutes which control a school bus driver and those which relate to a school teacher are quite different in their provisions. For instance Section 4237 of the 1927 Code declares:

"The board may, by a majority vote, discharge any teacher for incompetency, inattention to duty, partiality, or any good cause, after a full and fair investigation made at a meeting of the board held for that purpose, at which the teacher shall be permitted to be present and make defense, allowing him a reasonable time therefor."

Such statutory provision, of course, does not apply to the bus driver. Public policy prompted the legislature to enact the aforesaid section concerning the discharge of a teacher only after charges preferred and the hearing had.

Consistent with section 4229, supra, as before indicated, the appellee's agreement fixed a definite term. That contractual provision concerning the term for teaching is founded upon the following clause in section 4229, supra:

"Contracts with teachers must be in writing, and shall state the length of time the school is to be taught."

Complying with that statutory mandate, the appellant and appellee specified in their contract, as before said, that the term for teaching should be thirty-six weeks. Both the teacher and the school district were interested in knowing the length of time. After the school year once commenced, the teacher would have difficulty in finding a new position, and the district likely might encounter embarrassment in locating another teacher. So the statutory provision was for the protection of both the teacher and the district. Carefully guarding the district and the teacher in this regard, the legislature enacted Section 4237, above-quoted. When the board, as here, has hired the teacher for a definite period, she cannot be discharged except as provided in that section. Said section becomes a part of the contract. Chehock v. Independent School District, 210 Iowa 258. While discussing a similar subject, the Supreme Court of Arizona, in Public School District No. 11 v. Holson, 252 Pac. (Ariz.) 509, reading on page 511, said:

"Paragraph 2806, Civil Code (of Arizona), is found under the heading of `Teachers' and is as follows:

"`In case of the dismissal of any teacher before the expiration of any contract entered into between such teacher and the board of trustees, for alleged unfitness or incompetence, appeal may be had to the county superintendent.'

"This language does not directly confer the power of dismissal upon the trustees, but recognizes the existence of such power when the teacher is unfit or incompetent, but in no other case. If the teacher is fit and competent, the power of dismissal does not exist, as the expression of the one excludes the other. The legislature in naming the grounds upon which a dismissal could be made by the trustees, especially where such grounds are broad enough to cover almost every kind of disqualification imaginable, must be presumed to have intended such grounds to be exclusive and a prohibition against the exercise of the power of dismissal whimsically, arbitrarily, or capriciously, or upon a mere desire for a change. * * *

"When the privilege of teaching is so carefully hedged about, the recipient of credentials, who in his work has not shown himself unfit or incompetent, should not be subjected, as to his tenure of employment, to the mere pleasure of the employing agents, and we do not believe that the Legislature intended that he should be. We are of the opinion that the contract of employment fixed plaintiff's tenure for a term of ten months, and that the provision of the contract attempting to authorize the trustees to dismiss her at pleasure is contrary to, and violative of, the spirit and policy of the law as declared by the Legislature, and that the right to dismiss a teacher and thereby terminate her contract of employment exists only when she is shown, after an opportunity to be heard, to be unfit or incompetent to perform her contract."

Once more the Arizona Supreme Court considered the same subject in Sarle v. School District Number 27 of Pima County, 255 Pac. (Ariz.) 994. Therein that court declared:

"The question of the power and right of boards of trustees to insert in a contract employing a teacher a stipulation that the contract might be terminated upon notice was later, in January, 1927, in Public School District No. 11 of Maricopa County v. Holson, 252 P. 509, passed upon by this court. In that case we held that such provision was invalid, and that the trustees of the school district could not dismiss the teacher at pleasure, or arbitrarily, or capriciously, and that the effort to write such power into the contract was violative of the spirit and policy of the law as declared by the Legislature. It was said in that case that the Legislature had enumerated the causes for which a teacher might be dismissed, and that the right of dismissal was limited to those causes."

As in Arizona, so in Iowa the legislature determined the causes for which a teacher could be dismissed. See Section 4237, supra. Likewise, the Iowa legislature provided that before such dismissal it was necessary that charges be filed and an opportunity for hearing given. Consequently that method for discharging a teacher is exclusive. In the case at bar, however, no such charges were filed against, or opportunity for hearing given, the appellee.

But the majority attempts to distinguish between the Arizona statute, discussed in the foregoing cases, and the Iowa legislation. The distinction pointed out by them is that the Arizona legislation does not contain a clause similar to that embraced in Section 4229, supra, to wit: "Contracts with teachers must be in writing, and shall state the length of time the school is to be taught, * * * and such other matters as may be agreedupon" (the italics are ours). This italicized provision, the majority maintains, acts as a saving clause to distinguish the Iowa law from that discussed in the Arizona cases. If there is any material difference between the two statutes it must be found in the italicized provision. Obviously, however, the clause italicized above in section 4229 of the Iowa statute does not authorize the school board and the teacher to limit or overcome the express provision in the first part of the same section. Reference is made to the following: "Contracts with teachers must be in writing, and shall state the length of time the school isto be taught." (The italics are ours). That statutory mandate is definite and positive. Surely, then, the permissive clause to which the majority refers cannot overcome and be inconsistent with the first specific and affirmative requirement. "The length of time the school is to be taught" must be definite and certain, and that is true whether the term for which the teacher may be hired shall be long or short. Undoubtedly the general clause in the same section of the statute, to wit, "and such other matters as may be agreed upon", may include many and various subjects, but whatever is embraced therein cannot include a provision inconsistent with the previous positive declaration that the contract "shall state the length of time the school is to be taught."

Section 4229, supra, itself interprets in a general way what may be included within the clause "and such other matters as may be agreed upon". To illustrate, the statute provides "and such other matters as may be agreed upon, which may include employmentfor a term not exceeding the ensuing school year * * *." (The italics are ours). The thought expressed by the statute itself, as an illustration of its own interpretation, is that the teacher's term of employment must be fixed and definite as stated in the first part of the section, wherein it provides "contracts with teachers must be in writing, and shall state the length of time the school is to be taught." By reaching their conclusion that the phrase "and such other matters as may be agreed upon" may include an indefinite and unfixed time of employment the majority nullify the express wish of the legislature, as clearly outlined in the statute. If, as in the contract set forth in the majority opinion, the term for which the teacher is employed can be terminated at the option of either the teacher or the district, the statutory mandate has been nullified. The statute requires that contracts with teachers must be in writing and shall state the length of time the school is to be taught. Under the optional contract approved by the majority, no one knows "the length of time the school is to be taught". Such time may be a year, six months, thirty, or even twenty, days. When the school year commences, the district does not know that it is to have a teacher for the entire year, although the statute requires that the contract of employment shall state "the length of time the school is to be taught." By exercising the option at any time during the school year, the teacher could interrupt the progress of the school by refusing to teach farther, and the grade would have to be discontinued if the school district was not fortunate enough to secure another teacher at the late time to supply the vacancy. On the other hand, under such optional agreement, no teacher could feel that she had employment for the school year, but regardless of Section 4237, she could be discharged without cause at the whim and caprice of a school board. To avoid those results, section 4237 was adopted by the legislature, and section 4229 was made to read: "Contracts with teachers must be in writing, and shall state the length of time the school is to be taught."

A suggestion is made by the majority that section 4229 of the 1927 Code provides for a rescission, under the following language: "And that the same (the contract with the teacher) shall be invalid if the teacher is under contract with another board of directors in the state of Iowa to teach covering the same period of time, until such contract shall have been released." Manifestly that position is not sound. There is a vast difference between the statutory requirement for a valid contract fixing the time the school is to be taught, and a provision that there cannot be a second contract of that kind until the first is released. An optional contract permitted by the majority would leave the school district and the teacher without a definite assured period during which the school is to be taught. It was unquestionably upon the basis of public policy that the legislature sought to avoid that result. Schools are essential, but schools without teachers for the ordinary term, would not meet the required standing. Therefore, the statutory requirement for the definite period was enacted. On the other hand, it is well known that the teaching profession has its regularity of proceedings to obtain employment. These teachers are hired at the usual time each year, and after that date few, if any, schools are available to the unemployed teachers. Because of the welfare of the teacher as well as the school, the statutory provisions requiring the definite time for teaching were demanded in each contract, as before said. Hence the optional provision is not permissive under the statute. However, when a fixed time is assured by a positive contract, there might not be any violation of the statutory rule to permit a voluntary rescission of the teaching contract in the future. If the time for teaching is fixed and certain, it will be known then that the schools are to run. The school district would not consent to a release of the teacher under her contract unless it knew that another teacher was available to continue the school. Likewise, the teacher would not voluntarily consent to a rescission of her contract unless she knew that another school was available to her. Consequently, a subsequent voluntary rescission is quite different from the execution of an original contract permitting optional termination. In the one case, the school district is assured the services of a teacher, while in the other it is not. Again, in the one case the teacher is guaranteed a position, while in the other she is not. So it is apparent that the authority to voluntarily rescind an existing agreement would be no basis under the statute for originally entering into a contract indefinite as to the time for teaching. The statutory mandates concerning the fixed period for teaching furnish the distinction. All this discussion is made upon the assumption rather than the conclusion that the subsequent rescission is permissible under the statute.

Such being the law, then, the district court was justified in holding that the appellant could not discharge appellee during the term of her contract, except as provided in section 4237 of said Code.